Emrose Academy Ltd v Director of Surveys & 3 others [2020] eKLR

Court
Court of Appeal at Nairobi
Category
Civil
Judge(s)
W. Warsame, D.K. Musinga, F. Sichale
Judgment Date
October 23, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Emrose Academy Ltd v Director of Surveys & 3 others [2020] eKLR


1. Case Information:
- Name of the Case: Emrose Academy Ltd v. Director of Surveys & Others
- Case Number: Civil Application No. 161 of 2017
- Court: Court of Appeal at Nairobi
- Date Delivered: 23rd October 2020
- Category of Law: Civil
- Judge(s): W. Warsame, D.K. Musinga, F. Sichale
- Country: Kenya

2. Questions Presented:
The primary legal issues before the court were whether Emrose Academy Ltd is entitled to a stay of proceedings in the Environment and Land Court Civil Suit No. 1147 of 2015 while its appeal against the ruling of 6th April 2017 is pending, and whether the applicant has established sufficient grounds to warrant such a stay.

3. Facts of the Case:
Emrose Academy Ltd, the applicant, is involved in a land ownership dispute. On 9th November 2015, the applicant filed Civil Suit No. 1147 of 2015 in the Environment and Land Court, seeking injunctive orders to prevent the subdivision of its property, LR No. Nairobi/Block 121/245, into two parcels. On 6th April 2017, the ELC dismissed this application, prompting the applicant to seek an appeal. The applicant argued that without a stay, the core issue of land ownership could be compromised. The respondents, including the Director of Surveys and the National Land Commission, contested the motion, asserting that the land in question does not exist.

4. Procedural History:
The case originated in the Environment and Land Court, where the applicant sought injunctive relief against the subdivision of its property. Following the dismissal of their application on 6th April 2017, the applicant filed a Notice of Motion on 27th June 2019, seeking to stay all proceedings in the ELC pending the outcome of the appeal. This motion was heard by the Court of Appeal on 21st September 2020, although no counsel appeared for the applicant at that time. The respondents opposed the motion through a replying affidavit, claiming that the land in question had ceased to exist, rendering the applicant's motion moot.

5. Analysis:
- Rules: The court evaluated the principles governing the granting of a stay of execution, which necessitate that the applicant demonstrate an arguable appeal and show that executing the judgment would result in irreparable harm. The court referenced the case of *Stanley Kang’ethe Kinyanjui vs. Tony Keter & 5 Others [2013] eKLR*, which outlines these principles.

- Case Law: The *Stanley Kang’ethe Kinyanjui* case was pivotal, as it highlighted that an arguable appeal exists when there is a legitimate dispute over land ownership. It emphasizes the necessity of preventing alterations in land status that could influence the outcome of the appeal.

- Application: The Court of Appeal concluded that the applicant had established an arguable appeal due to the ongoing dispute regarding land ownership. The court reasoned that without a stay, the situation surrounding the land could change significantly, potentially affecting the appeal's subject matter. Consequently, the court granted the stay of proceedings as requested.

6. Conclusion:
The Court of Appeal ruled in favor of Emrose Academy Ltd, granting a stay of proceedings in the Environment and Land Court Civil Suit No. 1147 of 2015 pending the determination of the appeal. This ruling reflects the court's recognition of the serious implications of allowing proceedings to continue amid an active appeal concerning land ownership, thereby safeguarding the applicant's rights.

7. Dissent:
There were no dissenting opinions noted in this ruling, as the decision was unanimous among the judges presiding over the case.

8. Summary:
The Court of Appeal's decision to grant a stay of proceedings in the Emrose Academy Ltd case underscores the importance of protecting the rights of parties involved in land disputes while an appeal is pending. This ruling serves as a legal precedent for similar cases where land ownership is contested, ensuring that the legal process remains intact and is not prematurely affected by actions taken prior to the resolution of appeals.

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